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Employers: Know Your State's Drug-Testing Laws

Drug Free Pennsylvania is advocating that employers learn the legalities about administering drug-testing programs, especially during the summer months, when many employers are hiring seasonal workers.

"Substance abuse in the working environment can lead to lost productivity, workplace accidents, and problems that employers understandably would rather not have to confront," said Beth Winters, executive director of Drug Free Pennsylvania. "While our mission is to reduce or eliminate substance abuse across Pennsylvania, the problem nonetheless still exists. Employers who know the rules regarding drug testing can better focus on doing the business of business, not the business of dealing with personnel issues."

The federal Americans with Disabilities Act (ADA) forbids employers from testing an applicant for alcohol use until after a conditional offer of employment has been made. That is the one constant nationwide. Other laws on drug testing vary widely from state to state, with some only allowing them for jobs involving public safety, some allowing them for all types of jobs, and others not allowing them at all.

Pennsylvania gives broad rights to private employers to implement drug-free workplace programs, including testing. Pennsylvania has only one statute on the books with respect to drug testing: a clean urine statute, which prohibits the sale/attempted sale or purchase/attempted purchase of clean urine for the purpose of beating a drug test, making it a misdemeanor. Pennsylvania's unemployment compensation law and workers' compensation law also provide for denial of benefits if drugs or alcohol are involved.

Public employers, however, must abide by the U.S. Constitution's Fourth Amendment, which protects citizens from unreasonable searches and seizures. Drug testing is considered a seizure for constitutional law purposes. Generally, public employers need to show reasonable cause in order to conduct drug and alcohol testing. The types of testing they can conduct are usually limited to post-accident or reasonable cause situations, unless the employer can point to a statute that broadens its rights (such as Department of Transportation regulations for certain classes of truck drivers) or that the public's interest in safety and security outweighs the individual's right of privacy.

The ADA outlines the specific obligations for employers and employees concerning substance abuse in the workplace as follows:

An employer may prohibit the illegal use of drugs and the use of alcohol at the workplace.

It is not a violation of the ADA for an employer to give tests for the illegal use of drugs.

An employer may discharge or deny employment to persons who currently engage in the illegal use of drugs.

Employees who use drugs or alcohol may be required to meet the same standards of performance and conduct that are set for other employees.

Employees may be required to follow the Drug-Free Workplace Act of 1988 and rules set by federal agencies pertaining to drug and alcohol abuse in the workplace.

"Employers who either don't know the rules or choose to not perform the proper drug testing before bringing new employees onto the payroll can be setting themselves up for problems that could have easily - and legally - been avoided," added Winters.

For more information, contact Winters at Drug Free Pennsylvania at (717) 232-0300.